[2015] KEHC 1942 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MACHAKOS

HIGH COURT CRIMINAL CASE NO.68 OF 2008

REPUBLIC………………………………………………..PROSECUTOR

VERSUS

ANTHONY KYALO MUKULI……………............…………….ACCUSED

J U D G M E N T

1. Anthony Kyalo Mukuli hereinafter “the Accused” is charged with the offence of Murder contrary to section 203 as read with section 204 of the Penal Code. Particulars of the offence being that on the 10th day of July, 2008 at Mikameni village, Ekalakala location, Masinga Division within Yatta District of Eastern province murdered Hellen Mwikali Francis (Deceased).

2. The facts of the case are that on the 10th day of July, 2008 the deceased was found lying on her bed having passed on.

3. On the same date at about 5. 00 pm. PW1 John Kasina Mutuku was grazing his animals when the accused, his nephew approached him requesting him to go and assist the deceased who was neither breathing nor responding. He went to their home and found the deceased already dead.

4. PW2 Penina Kalunde Mutua a cousin to the accused testified that he was at home at about 4. 30pm on the material date when the accused went and told her that his mother (deceased) was indisposed from the previous day and as he was taking her to hospital he encountered a lady who advised him to take her back home as he would not be assisted. He acted on the advice given. At about 5. 00 pm she went to check on the deceased and found the accused sitting outside the house. She asked the accused to open the door. He did so. They entered the house and found the deceased having passed on. She noticed a blood spot on the right side of the neck. She asked the accused to call his brother Simon Muthama Musili but he declined stating that they were not in good terms.

She took upon herself to call him and informed him that his mother was seriously sick although she was already dead.

5. PW3 Daniel Nduli Kaswili received a call from his cousin Simon Musili who requested him to take his ailing mother to hospital. He went to their home to find her already dead.

Her sons, the accused herein and his brother Muthiani were at home with other people. He observed her body and noticed some black spots on her neck. On cross-examination, he stated that although he did not know of any grudge between the accused and his mother, a week earlier she had complained that the accused was stealing maize and selling it at the market.

6. PW5 Dr. Simon Kioko Muli carried out a postmortem on the body of the deceased. The body had multiple superficial bruise wounds on both knees interiorly. There was blood frothing at the mouth. The neck had hyperemic marks. There was faecal matter at the anal orifice and the anus was gaping. The spinal cervical bones were dislocated. He opined that the cause of death was cardio pulmonary arrest due to asphyxia secondary to neck strangulation.

7. PW6 Joseph Muthiani Musili a brother to the accused and son to the deceased respectively had visited his parents at the time. He went to the market where his mother used to sell milk but she was not there. He rang her phone which was answered by the accused who told him that their mother was unwell. He went home and found her on the bed. He thought she was asleep. He called their neighbour who on observing her, noted that she was dead. He contacted his brother Simon.

8. Thereafter, they took the body to the mortuary. On cross-examination he said that with the help of Agnes they attempted to give the deceased sheep’s urine to partake, which is believed to be medicine among the Kambas that treat persons who suffer such ailment. It was at that point in time that he noted that the deceased was already dead. He also noticed that she was bleeding from the mouth.

9. PW8 Timothy Kivathi Nzioka an assistant chief of Ekalakalasub-location issued a permit to Daniel Kaswili (PW3) on the 10th July, 2008 to move the body of the deceased to the mortuary as it was stated that she died of a natural death.

However, the following day he got communication from Daniel who said that the accused had killed his mother. He notified the OCS who advised him to arrest the accused. He complied. He went to the accused’s home with Daniel and the accused’s father Musili Kasui Munguti whom he described as not being of “very sound mind”.

The following day he went with the police to the scene of the incident. They found blood stains on the mattress and under the bed. Beneath the mattress was a sweater and skirt that had blood stains. They retrieved from the pit latrine a shirt and vest that were stuck on a piece of wood. They also recovered some table clothes and a white T-shirt which had stains of blood. On cross-examination he stated that previously he resolved a number of cases between the accused and the deceased. The accused was known for taking part in criminal activities in the village. When the items were recovered the accused person was not with them.

10. PW9 Stephen Matinde Joel a government analyst analysed items submitted to the government chemist and came up with a report. PW10 No.41814 P.C. Christopher Mukhwana re- arrested the accused.

11. PW11 No.87018 P.C. Bernard Kiprotich Kirui visited the scene and recovered various items. According to him they went to scene with the suspect (Accused). They searched the house. In the sitting room were seat covers that were on the seats. They found a mattress, blanket and skirt in the bedroom that were stained with blood. They moved to the accused’s house and recovered a grey T-shirt that had blood stains which he stated that belonged to the accused. On cross-examination, he stated that they were with the accused but he was in cuffs and outside when the items were being recovered and when the item from the pit latrine was recovered the accused was not at the latrine.

12. When put on his defence the accused denied having committed the offence. He stated that by then he had separated with his wife. He was arrested and accused of killing the deceased whom he described as his step-mother. He had seen her in the morning of the date she died. It was his evidence that he returned home at about 5. 00 pm and found her vomiting blood. She was sitting in the sitting room on the seat. He went on to state that in the morning after breakfast the deceased went for a ladies meeting and returned home at 1. 00 pm. He was herding animals. She told him that she was feeling dizzy and asked him to go and buy her medicine which he did. She took it. He decided to seek help from John Kasina whom he had seen herding cows. It took John Kasina long to go to the house. He decided to take her to hospital. He carried her on a bicycle that got a tyre burst after moving for one and a half kilometers. They went back home. He went to borrow an ox-cart to use which he did not get. He therefore notified his brother Simon. By then the deceased was not talking. David arrived with a motor- cycle. The deceased passed on thereafter between 5. 00 pm- 6. 00pm. He was one of the persons who took the body to the mortuary at 8. 00pm.

12. Further, he stated that the deceased was not wearing the clothes that were produced in court. However, he said that as she vomited she wore the skirt that was produced in court. He stated that the table clothes were hers but the sweater was not hers. He denied having been taken to the homestead when the police made recovery of exhibits. He denied having a grudge with his mother although they would occasionally disagree.

13. On cross-examination he stated that he was at home with his brother Munguti Paul who left in the morning going to his place of work at a neighbours place some 500 meters away.

14. At the close of the defence’s case submissions were filed by both the prosecution and the defence which I have taken into consideration.

Issues for determination are therefore:

Whether the accused caused the death of the deceased by an act or omission.

Whether it was with malice aforethought.

15. An autopsy was done on the body of the deceased which revealed that the death was not natural. The cause of death was cardio pulmonary arrest due to asphyxia secondary to neck strangulation. As correctly submitted by counsel for the accused no direct evidence was tendered by the prosecution pointing at the accused as the person who strangled the deceased. The accused was suspected to have caused the death of the deceased because he was staying at the same homestead with her. Later on investigations were carried out and a shirt was found to be stained with blood. According to the Investigation Officer it belonged to the accused.

16. This is a case where evidence tending to connect the accused with the offence in circumstantial in nature. In the case of Sawe verses Republic (2003) KLR 364 the Court of Appeal held that:

“(i) In order to justify a conviction on circumstantial evidence the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused and incapable of explanation upon any other reasonable hypothesis than of guilt.

(ii) Circumstantial evidence can be a basis of a conviction only if there is no other existing circumstances weakening the claim of circumstances relied on.

(iii) The burden of proving facts which justify the drawing of the inference from the facts for the exclusion of any other reasonable hypothesis of innocence is on the prosecution. This burden always remains with the prosecution and never shifts to the accused.

(iv) Suspicion however strong, cannot provide the basis of inferring guilt which must be proved by evidence beyond reasonable doubt.”

17. When the police visited the homestead, many people were present. Initially, the deceased’s death was treated as natural. Her sons, the accused inclusive with their cousin PW3 sought a permit from PW7 in order to move the body to the mortuary. The permit was issued, the body was taken to the mortuary. The following day it emerged that the accused was suspected of having committed an act that resulted into the death of the deceased.

18. In his evidence the Doctor stated that the spinal column at the neck was dislocated. This made him form an opinion that the deceased died of stoppage of the heart and lungs due to asphyxia. On cross-examination,

he stated that a blunt force could amount to strangulation and the dislocation of the spine could cause suffocation. Evidence adduced that the deceased was ailing is not in doubt. PW6 her son found her very sick. He decided to call their neighbour Agnes who would assist them believing that she was asleep. On cross-examination it emerged that the two (2) of them tried administering sheep’s urine to the deceased through the mouth. PW6 held her as Agnes did the actual act.

The question that is left gaping is whether she could have been injured in the process?

19. There is however, the issue of a shirt having been stained with blood that was of the deceased’s blood group. PW8 accompanied police officers to the scene. They found the house locked and opened it. They went on to recover items that were produced in evidence in the absence of the accused although they stated that he was within the homestead. The accused however denied the allegation. According to PW8 they recovered the shirt (Exhibit 4) from a latrine, but PW11 stated that the shirt was found in the house that belonged to the accused. According to PW11 it was the green sweater with stripes that they found in the toilet. The accused denied the allegation that the sweater belonged to the deceased. None of the sons of the deceased who testified identified it as belonging to her or even any other exhibit that was produced in evidence.

20. It is admitted that the seat covers used in the sitting room on the seat where the accused alleged that he found the deceased vomiting blood. They found the bed on which the deceased lay slightly stained with blood. There was a skirt, a T-shirt beneath the mattress stained with blood. It is admitted that the accused was one of the persons who carried the body to hospital. If the shirt (Exhibit 4) belonged to him there may have been a possibility of it being stained.

21. It is not in doubt that the accused acted by attempting to have the deceased taken to hospital. PW1 a relative of the accused and deceased told the court how the accused went to seek help. Similarly he went to PW2 in an endeavor to help his ailing mother. Looking at his conduct, he returned home and waited upon his sick mother. He claimed that he attempted to take her to hospital but the means of transport he used (bicycle) got a tyre burst therefore he returned home out of desperation.

22. Evidence adduced indeed clearly show that the accused was suspected of having committed the offence because he was the one staying at the homestead with the deceased. There is however no cogent evidence adduced pointing irresistibly to the accused as the person who caused the death of the deceased.

23. Having considered evidence adduced I find the prosecution having failed to prove the case beyond any reasonable doubt.

He is found not guilty and therefore acquitted under section 306 (2)of theCriminal Procedure Code.

23. It is so ordered.

DATED, SIGNED and DELIVERED at KITUI this 24TH day of SEPTEMBER, 2015

L.N. MUTENDE

JUDGE